COURT OF APPEALS OF VIRGINIA 

Present: Judges Beales, Decker and Senior Judge Clements 

Argued by teleconference 

THOMAS SUNGHAN KIM 

 MEMORANDUM OPINION*

 BY 

v. Record No. 1090-13-4 JUDGE JEAN HARRISON CLEMENTS 

 APRIL 22, 2014 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Lorraine Nordlund, Judge 

 Robert F. Horan, III (James R. Hart; Hart & Horan, P.C., on briefs), 

for appellant. 

 Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R. 

Herring, Attorney General, on brief), for appellee. 

 Thomas Sunghan Kim (“appellant”) was convicted of unlawfully throwing or shooting a 

missile into an occupied dwelling in violation of Code § 18.2-279. On appeal, he contends the 

evidence was insufficient to support his conviction because it failed to prove his slingshot was a 

“deadly weapon” or that his actions placed lives in peril. For the reasons that follow, we affirm his 

conviction. 

As the parties are fully conversant with the record in this case and because this 

memorandum opinion carries no precedential value, this opinion recites only those facts and 

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this 

appeal. 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

UNPUBLISHED 
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Background 

 “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 

438, 443, 358 S.E.2d 415, 418 (1987)). Philip and Joyce Henry lived in the townhome next to 

appellant. Mrs. Henry’s early encounters with appellant in 2011 were limited and uneventful. 

However, as she saw him frequently in his backyard drinking for an extended period of time, she 

generally avoided her back deck. 

 In the summer of 2012, Mrs. Henry stepped out onto her back porch to tell appellant she 

would be moving to the townhome on the other side of him. He appeared “distant and dreamy” 

as if he were either “high or intoxicated.” Upon Mrs. Henry informing appellant of her move, he 

began asking whether she was in the CIA. From that time forward, appellant questioned 

Mrs. Henry “constantly” about the CIA, and asked repeatedly, “Who do you work for? Who do 

you work for?” On one occasion, appellant rifled through Mrs. Henry’s garbage cans and asked 

if she was “from the planet Sirius.” She tried to move her belongings from one townhome to the 

other at night so she would not encounter him. 

 By September 2012, the Henrys had completed their move. On the morning of 

September 4, 2012, Mrs. Henry ran into appellant as she stepped outside her townhome onto the 

back deck. Appellant told Mrs. Henry she “look[ed] like a pig, that [her] husband wanted to 

divorce [her], [and] that [she] had killed four children.” Mrs. Henry reassured him she had not 

killed four children, and advised him tree trimmers would be stopping by her home. When 

Mrs. Henry asked appellant if they could “be friends,” he threw a lit cigarette at her. Noticing 

the beer bottle in appellant’s hand, Mrs. Henry chided appellant not to “throw things” at her. 
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Appellant made a motion as if he might throw the bottle at her, but “checked himself” and threw 

it at the deck on the side on the house instead. 

 Mrs. Henry stated, “Can you just stop it? You know, this is ridiculous.” Appellant 

looked Mrs. Henry in the eye and responded, “You’re not Asian.” He left the deck and went 

inside his townhome. 

 Approximately twenty minutes later, appellant returned dressed in black paramilitary 

gear with orange glasses like those worn at a shooting range. A giant hunting knife was dangling 

from a cord at appellant’s side, and he was carrying what appeared to be an Asian sword in a 

long sheath. Appellant slammed the sword against his deck and proclaimed to Mrs. Henry, “Do 

you see this? Do you see this?” 

 Concerned, Mrs. Henry thought she should take a picture of appellant’s gear. She 

stepped inside her townhome and returned with her cell phone. When she snapped the picture, 

appellant responded, “CIA, CIA lady, I know you took my picture.” 

 Mrs. Henry reassured him the picture did not “come out,” and began to think about a way 

to extricate herself from the situation without incident. She took his picture and complimented 

him on his “really cool outfit.” Her words appeared to placate appellant, and he sat down to 

smoke a cigarette. However, he became periodically agitated, stood up and said “horrible 

things” to Mrs. Henry. When appellant called Mrs. Henry “the C word,” she believed he had 

finished insulting her by saying the “worst thing he could think of at the time.” He told 

Mrs. Henry he would be “right back” and that he was “going to go have a cup of tea.” 

 Mrs. Henry retreated inside, grabbed her keys, and left through the front door. On her 

way out, she noticed the two small concrete statues flanking her entrance were missing. 

Mrs. Henry visited the local police station to ask the officers what she could do, and they advised 
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they could charge him with assault for the beer bottle incident. Mrs. Henry decided to wait for 

her husband to come home to discuss it with him before taking any action. 

 Mrs. Henry returned home shortly after 1:00 that afternoon and went to her upstairs 

bedroom to wait for her husband’s arrival from work at 4:00 p.m. Her bedroom was located over 

the first floor sliding glass door to the back deck where she had encountered appellant that 

morning. At approximately 3:00 p.m., she heard a “kind of slamming bang sound.” Speculating 

something had fallen over, Mrs. Henry went downstairs to investigate, but upon finding nothing 

out of place, went back upstairs to wait for her husband. 

 When Mr. Henry came home, his wife recounted the events of the day and told him she 

“could [still] hear things hitting the house.” Mr. and Mrs. Henry walked back to the sliding glass 

door adjoining their rear deck. Looking outside, Mrs. Henry saw a small piece of vinyl siding on 

the deck. She and her husband opened the sliding glass door and stepped outside to pick up the 

vinyl shard. As they did, Mr. Henry noticed two small ball bearings in the cracks of the deck 

flooring. 

 Mrs. Henry told her husband they should go back inside immediately. The couple 

stepped through the sliding glass door, and Mr. Henry immediately shut the door behind them. 

He faced the sliding glass door and began closing the curtain over it. As soon as he finished 

closing it, he heard another “loud bang” similar to the sounds Mrs. Henry had heard when she 

was upstairs. Mrs. Henry directed her husband to move away from the sliding glass door. 

Mr. Henry moved to the window around the corner from the sliding glass door and looked 

outside. Appellant was standing in the middle of his deck1 and was “gesturing with a sling shot.” 

 1

 The deck behind the Henrys’ townhome was not as deep as the one behind appellant’s 

townhome, so that the Henrys had a limited line of sight to appellant’s deck from inside their 

sliding glass door. In order to see appellant’s deck, Mr. Henry had to step into a “bumped out” 

area of his townhome that adjoined his deck. 
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A short time later, the Henrys heard a “thud” and noticed that appellant had thrown an unopened 

pack of cigarettes. Mrs. Henry called the police, and appellant was arrested that evening. Upon 

examining their back deck, the Henrys found two small holes in the siding next to the exterior 

light beside the sliding glass door. They found no additional ball bearings. 

 At trial, Mr. Henry described appellant’s slingshot as “a cut more sophisticated than a 

kid’s sling shot.” Based on the configuration of the decks behind each house, Mr. Henry 

explained that appellant could aim at the sliding glass door area only by standing at the end of 

the interior corner of appellant’s deck. Appellant acknowledged he shot the ball bearings at the 

Henrys’ home, but maintained he was “aiming at the light fixture” next to the sliding glass door. 

He estimated he was standing approximately twenty feet from the light fixture at the time he 

fired. He explained he had bought the slingshot in the sporting goods section of K-Mart after his 

mother asked him to “get rid of” the animals in her garden. Appellant testified that the slingshot 

was used to kill not only typical garden animals, but deer as well. 

Analysis 

 Appellant maintains the evidence was insufficient to prove he violated Code § 18.2-2792

because it did not establish that shooting the ball bearings at the Henrys’ house may have placed 

his or her life in peril. He also contends the trial court erred in finding that the slingshot was a 

deadly weapon, thereby relieving the Commonwealth of proving that appellant’s conduct may 

have put the Henrys’ lives in peril. 

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 Code § 18.2-279 provides in pertinent part as follows: 

 If any person . . . maliciously shoots at, or maliciously 

throws any missile at or against any dwelling house or other 

building when occupied by one or more persons, whereby the life 

or lives of any such person or persons may be put in peril, the 

person so offending is guilty of a Class 4 felony. 
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 In reviewing the sufficiency of the evidence, we “presume the judgment of the trial court 

to be correct” and reverse only if the trial court’s decision is “plainly wrong or without evidence 

to support it.” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en 

banc) (citations omitted). Thus, we inquire only whether “‘any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.’” Id. (quoting Jackson v. 

Virginia, 443 U.S. 307, 319 (1979)). “[A] reviewing court does not ‘ask itself whether it

believes that the evidence at the trial established guilt beyond a reasonable doubt.’” Barnes v. 

Commonwealth, 47 Va. App. 105, 110, 622 S.E.2d 278, 280 (2005) (quoting Stevens v. 

Commonwealth, 46 Va. App. 234, 249, 616 S.E.2d 754, 761 (2005) (en banc) (emphasis in 

original and citation omitted)). 

 Applying this standard, we conclude the evidence supports the trial court’s finding that 

appellant violated Code § 18.2-279. 

 In reaching its verdict, the trial court was not required to find that appellant’s actions in 

fact placed the Henrys’ lives in peril. The evidence was sufficient to support a finding of guilt 

upon proof that firing the ball bearings at the Henrys’ home may have placed their lives in peril. 

See Kirby v. Commonwealth, 264 Va. 440, 445, 570 S.E.2d 832, 835 (2002) (shooting near, but 

not necessarily at, intended victim was sufficient to satisfy “may be put in peril” standard of 

Code § 18.2-279); Dowdy v. Commonwealth, 220 Va. 114, 117, 255 S.E.2d 506, 508 (1979) 

(Code § 18.2-279 does not require proof that “human life was, in fact, endangered.”); Strickland 

v. Commonwealth, 16 Va. App. 180, 182, 428 S.E.2d 507, 508 (1993) (“possibility” of ricochet 

from shooting firearm at ceiling of occupied room satisfied “peril” requirement of Code 

§ 18.2-279). 

 Here, the evidence was undisputed that appellant fired his slingshot deliberately at the 

Henrys’ home in the deck area where he had last interacted with Mrs. Henry. He had thrown 
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objects at her earlier that day, had made derogatory and accusatory comments, and had dressed 

himself in “combat” attire. Appellant stood as close as twenty feet from the Henrys’ sliding 

glass door at the time he fired the ball bearings. 

 After the Henrys stepped outside on their deck to investigate, appellant resumed firing at 

the sliding glass door. He fired at head level in the direction of the sliding glass door almost 

immediately after Mr. Henry closed it and was drawing the vertical blinds. The shot prompted 

Mr. Henry to move away from the sliding glass door. When Mr. Henry looked out of a window 

facing appellant’s deck, he saw appellant crouching in an “aiming” posture with the slingshot. 

Based on this evidence, the trial court was entitled to conclude appellant knew one or both of the 

Henrys were on the other side of the sliding glass door at the time he fired the slingshot and that 

he deliberately fired a ball bearing toward them at head level. 

 Furthermore, the trial court was entitled to find that appellant’s slingshot was a weapon, 

as opposed to a toy. Mr. Henry described it as “more sophisticated” than the slingshot he had 

used as a boy, and appellant acknowledged he had purchased it in the sporting goods department 

to “get rid of” animals. When appellant fired ball bearings at the Henrys’ home, they struck it 

with sufficient force to pierce the siding. 

 Based on this evidence, the trial court could rationally conclude that the ball bearings, 

fired from the type of slingshot used by appellant, had the capacity to place the Henrys’ lives at 
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risk. Accordingly, we conclude the evidence was sufficient to satisfy the statutory peril 

requirement in Code § 18.2-279.3

Affirmed. 

 3

 Because the evidence was sufficient to prove beyond a reasonable doubt that appellant’s 

actions may have placed the Henrys’ lives in peril, we need not reach the issue of whether the 

trial court’s finding that the slingshot was a “deadly weapon” obviated the need to prove the 

Henrys’ lives were placed in peril. See Dowdy, 220 Va. at 117, 255 S.E.2d at 508 (proof that 

deadly weapon has been maliciously discharged at an occupied building “relieves the 

Commonwealth of the burden of proving that human life was, in fact, endangered”).